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Texas Department of Public Safety v. Smith

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 4, 2017

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
LAURA SMITH, Appellee.

         On appeal from the County Court at Law No. 2 of Hidalgo County, Texas.

          Before Justices Rodriguez, Contreras, and Longoria

          OPINION

          DORI CONTRERAS JUSTICE.

         We issued our original opinion in this case on February 23, 2017. Appellant, the Texas Department of Public Safety (the "Department"), and appellee Laura Smith have each filed motions for rehearing. See Tex. R. App. P. 49.1. We deny the motions for rehearing but withdraw our prior opinion and judgment and substitute the following opinion and accompanying judgment in their place.

         The Department challenges the county court's reversal of an administrative decision to uphold the 180-day suspension of Smith's driver's license. By four issues, the Department argues: (1) the court lacked jurisdiction because Smith did not send a copy of her petition to the State Office of Administrative Hearings ("SOAH"); (2) the court erred by finding that the Department did not need to be served with notice of the final hearing; (3) the court's judgment was erroneous because Smith did not notify the Department of the hearing, nor did she notify the Attorney General's Office of her intent to take a default judgment against the Department; and (4) the court erred in finding that the administrative decision was not supported by substantial evidence. We reverse and remand.

         I. Background

         On May 21, 2015, police officer Ricky Cervantes of the Mercedes Police Department pulled Smith's vehicle over as she was driving from Brownsville to McAllen. Cervantes asked Smith to provide a breath specimen, but she refused, and Cervantes arrested her for driving while intoxicated ("DWI"). See Tex. Penal Code Ann. § 49.04(a) (West, Westlaw through 2015 R.S.). Because Smith refused the officer's request to provide a breath specimen, her driver's license was automatically suspended for 180 days. See Tex. Transp. Code Ann. § 724.035(a)(1) (West, Westlaw through 2015 R.S.).

         Smith contested the suspension in an administrative hearing, but the administrative law judge ("ALJ") upheld the suspension. See id. § 724.041-.042 (West, Westlaw through 2015 R.S.). Smith then filed a "Petition of Appeal From Driver's License Suspension or in the Alternative Petition for Occupational Driver's License" in the Hidalgo County Court at Law Number Two. See id. § 521.242 (West, Westlaw through 2015 R.S) (regarding petition for occupational license); id. § 524.041 (West, Westlaw through 2015 R.S.) (providing for appeal of administrative decision sustaining driver's license suspension). She argued in particular that the record before the ALJ lacked substantial evidence showing that the officer had probable cause to stop her vehicle. See id. § 724.042(1) (stating that the issues to be considered in an administrative hearing on a driver's license suspension based on refusal to provide a blood or breath specimen include whether "reasonable suspicion or probable cause existed to stop or arrest the person"); Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) ("[C]ourts review administrative license suspension decisions under the substantial evidence standard."); see also Tex. Gov't Code Ann. § 2001.174(E) (West, Westlaw through 2015 R.S.) (providing that, under the substantial evidence standard, a trial court "shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because" an administrative ruling is "not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole").

         Smith sent copies of her petition, dated October 16, 2015, to the Hidalgo County District Attorney's Office and to the Department. On October 22, 2015, the county court sent notice of a hearing on Smith's petition, to be held on October 29, 2015, to Smith's counsel and to the District Attorney.[1]

         Smith's attorneys and an Hidalgo County assistant district attorney appeared at the October 29 hearing, which was before any pleadings responsive to Smith's petition had been filed. The Department was not represented at the hearing. Smith's attorneys presented the court with copies of the documentary evidence submitted at the administrative hearing, [2] along with a copy of the ALJ's ruling. At the conclusion of the hearing, the court emphasized that "[t]here's nobody here on behalf of the Department of Public Safety to make any argument, " and it orally found in favor of Smith.

         Three days later, on November 2, 2015, the Department's counsel filed a plea to the jurisdiction and answer to Smith's petition in which it argued, in part, that the county court lacked jurisdiction over the proceeding because Smith failed to meet the mandatory requirements of section 524.041 of the transportation code. See Tex. Transp. Code Ann. § 524.041. In particular, the Department complained that Smith had not served her petition upon the Department or the SOAH as required by that statute. See id. The Department's pleading also generally denied Smith's contention that the ALJ's ruling was not supported by substantial evidence.

         The county court subsequently issued a written judgment concluding that the ALJ's ruling was not supported by substantial evidence and reinstating Smith's driver's license. The Department filed a motion for new trial which was denied by operation of law, see Tex.R.Civ.P. 329b(c), and it then perfected this appeal.

         II. Discussion

         A. County Court Jurisdiction

         By its first issue, the Department contends that the county court lacked subject-matter jurisdiction because Smith failed to send notice of her administrative appeal in that court to the SOAH.[3] We review questions of subject-matter jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

         Transportation code section 524.041, which authorizes an appeal of an ALJ's decision on a driver's license suspension, states: "A person who files an appeal under this section shall send a copy of the petition by certified mail to the [D]epartment and to the [SOAH] at each agency's headquarters in Austin." Tex. Transp. Code Ann. § 524.041(c). In 1999, we held that this requirement was mandatory and failure to comply with it deprived the county court of jurisdiction. Tex. Dep't of Pub. Safety v. Benoit, 994 S.W.2d 212, 214 (Tex. App.-Corpus Christi 1999, pet. denied).

         Subsequently, the Texas Supreme Court observed in Dubai Petroleum Co. v. Kazi that deeming a provision jurisdictional "opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment." 12 S.W.3d 71, 76 (Tex. 2000) (citing Restatement (Second) of Judgments § 12 cmt. b (1982)). The Dubai Court noted instead that "the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction." Id. (citing Restatement (Second) of Judgments § 11 cmt. e). Because of these consequences, the Texas Supreme Court has been "reluctant to conclude that a provision is jurisdictional, absent clear legislative intent to that effect." City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009) (citing Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 83 (Tex. 2008); Dubai, 12 S.W.3d at 75-76).

         In Roccaforte v. Jefferson County, the supreme court found that a statute requiring a plaintiff suing a county to provide written notice of the suit to the county judge and the local county or district attorney was not jurisdictional because the requirements could only be satisfied after suit is filed. 341 S.W.3d 919, 925 (Tex. 2011). That case involved a local government code provision requiring notice to be "delivered by certified or registered mail by the 30th business day after suit is filed." Id. (citing Tex. Loc. Gov't Code Ann. § 89.0041(b) (West, Westlaw through 2015 R.S.)). The statute also provides that "[i]f a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official." Tex. Loc. Gov't Code Ann. § 89.0041(c). The fact that "a county can waive a party's noncompliance" with the notice requirement confirms that "compliance with the notice requirements is not jurisdictional." Roccaforte, 341 S.W.3d at 926. The Court observed that government code section 311.034 "applies to prerequisites to suit, not notice requirements that can be satisfied only after suit is filed." Id. at 926 (citing Tex. Gov't Code Ann. § 311.034 (West, Westlaw through 2015 R.S.) ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.")).

         The notice requirement at issue here does not explicitly provide that the court below may dismiss the cause only upon a motion to dismiss made by the defendant, as did the statute at issue in Roccaforte. Compare Tex. Transp. Code Ann. § 524.041(c) with Tex. Loc. Gov't Code Ann. § 89.0041(c). Nevertheless, it is clear that, as in Roccaforte, the section 524.041(c) notice requirement is not a prerequisite to suit but instead may only be accomplished after suit is filed. See Tex. Transp. Code Ann. § 524.041(c). In particular, the statute provides that the copy of the petition to be sent to the SOAH "must be certified by the clerk of the court in which the petition is filed, " a task which can necessarily be done only after suit is filed. See id. ("A person who files an appeal under this section shall send a copy of the petition by certified mail to the department and to the State Office of Administrative Hearings at each agency's headquarters in Austin. The copy must be certified by the clerk of the court in which the petition is filed."). Accordingly, in light of the Texas Supreme Court's holdings in Dubai, DeSoto, and Roccaforte, we disavow Benoit and conclude that the section 524.041(c) notice requirement is not jurisdictional because there is no clear legislative intent to that effect. See Roccaforte, 341 S.W.3d at 925-26; DeSoto, 288 S.W.3d at 393; Dubai, 12 S.W.3d at 76.

         The Department additionally contends that the county court lacked jurisdiction because Smith failed to obtain an official copy of the record of the administrative hearing. It suggests that, without a certified copy of the administrative record from SOAH, "there was no way for the trial court to ascertain whether the documents provided by Smith were offered or admitted at the administrative hearing, whether there were any objections made or sustained to the documents, or whether the documents comprised the whole of the evidence presented to the ALJ." The Department notes that, in reviewing an appeal of an administrative decision, the county court's review must generally be "on the record certified by the [SOAH] with no additional testimony." Tex. Transp. Code Ann. § 524.043(a) (West, Westlaw through 2015 R.S.); see Tex. Gov't Code Ann. § 2001.175(e) (West, Westlaw through 2015 R.S.) ("A court shall conduct the review sitting without a jury and is confined to the agency record, except that the court may receive evidence of procedural irregularities alleged to have occurred before the agency that are not reflected in the record."). It also notes that the SOAH is responsible for providing a copy of the official administrative record to the court. See Tex. Gov't Code Ann. § 2001.175(b) ("After service of the petition on a state agency and within the time permitted for filing an answer or within additional time allowed by the court, the agency shall send to the reviewing court the original or a certified copy of the entire record of the proceeding under review.").

         We agree with the Department that, if the court was not presented with the entire administrative record, the court would not be able to conduct a meaningful review of the ALJ's decision. See, e.g., Tex. Dep't of Pub. Safety v. Story, 115 S.W.3d 588, 598 (Tex. App.-Waco 2003, no pet.) ("[A] party seeking review of an adverse administrative determination does not receive a 'meaningful' appeal if the reviewing court affirms the challenged decision without the 'entire record' as contemplated by Section 2001.175(b), at least when the parties have not stipulated to a 'shortened record.'" (citing Tex. Gov't Code Ann. ยง 2001.175(b)). But that does not mean the failure to present the administrative record deprives the court of jurisdiction. The statute requiring the SOAH to provide a copy of the administrative record states that it is done "[a]fter ...


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